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Opinion of the Court.

tants of said State as to all other citizens of the United States, without any tax, duty, impost, or toll therefor;" and that, without the consent of Congress, a state law was not sufficient authority for the erection of such a structure; and, even if it was, the bridge did not conform to the requirements of the state law. See Hatch v. Willamette Iron Bridge Co., 7 Sawyer, 127, 141. The defendants took an appeal which was not prosecuted; but after the decision of this court in the case of Escanaba Co. v. Chicago, 107 U. S. 678, they filed the present bill of review for the reversal of the decree.

The reasons assigned for reversal are, amongst others, that the court erred in holding and decreeing as follows, to wit:

1st. That the bridge, where and as being constructed, was a serious obstruction to the navigation of the Willamette River, contrary to the act of Congress of February 14th, 1859, admitting the State of Oregon into the Union, which declares that all the navigable waters of the State shall be common highways and forever free to all citizens of the United States. 2d. That the said court, under § 1 of the act of March 3d, 1875, giving it jurisdiction of a suit arising under an act of Congress, has authority to restrain parties from violating said act by obstructing the navigation of any of said waters at the suit of any one injured thereby.

3d. That the proposed bridge is and will be a nuisance and serious impediment to the navigation of said river.

4th. That the legislature of the State of Oregon has not the power to say absolutely that a bridge may be built with only a draw of one hundred feet.

5th. That the Willamette Iron Bridge Company, as the assignee of the Portland Bridge Company, was not authorized by the act of the legislative assembly of Oregon to construct the said bridge, because it would be a violation of the said act of Congress of February 14th, 1859, admitting the State of Oregon in the Union, and was and is, therefore, void.

6th. That the defendant should be perpetually enjoined from constructing or proceeding with the construction of said bridge; and

Opinion of the Court.

7th. That the defendant should be required to abate and remove out of said river all piers, foundations, &c., which it has placed or constructed therein.

This bill was demurred to, and the court affirmed the decree in the original suit and dismissed the bill of review. Willamette Iron Bridge Co. v. Hatch, 9 Sawyer, 643; S. C. 19 Fed. Rep. 347. The present appeal is taken from this decree.

On a pure bill of review, like the one in this case, nothing will avail for a reversal of the decree but errors of law apparent on the record. Whiting v. Bank of the United States, 13 Pet. 6; Putnam v. Day, 22 Wall. 60; Buffington v. Harvey, 95 U. S. 99; Thompson v. Maxwell, 95 U. S. 391, 397; Beard v. Burts, 95 U. S. 434; Shelton v. Van Kleeck, 106 U. S. 532; Nickle v. Stewart, 111 U. S. 776. Does any such error appear in the present case? The court below has decided in the negative. We are called upon to determine whether that decision was correct. It must be assumed that the questions of fact, at issue between the parties, were decided correctly by the court upon its view of the law applicable to the case. But the important question is, was its view of the law correct? The parties in the cause, both plaintiffs and defendants, were citizens of the State of Oregon. The court therefore must necessarily have held, as we know from its opinion that it did hold, that the case was one arising under the constitution or laws of the United States.

The gravamen of the bill was, the obstruction of the navigation of the Willamette River by the defendants, by the erection of the bridge which they were engaged in building. The defendants pleaded the authority of the state legislature for the erection of the bridge. The court held that the work was not done in conformity with the requirements of the state law; but whether it were or not, it lacked the assent of Congress, which assent the court held was necessary in view of that provision in the act of Congress admitting Oregon as a State, which has been referred to. The court held that this provision of the act was tantamount to a declaration that the navigation of the Willamette River should not be obstructed or interfered with; and that any such obstruction or interference, without

Opinion of the Court.

the consent of Congress, whether by state sanction or not, was a violation of the act of Congress; and that the obstruction complained of was in violation of said act. And this is the principal and important question in this case, namely, whether the erection of a bridge over the Willamette River at Portland was a violation of said act of Congress. If it was not, if it could not be, if the act did not apply to obstructions of this kind, then the case did not arise under the constitution or laws of the United States, unless under some other law referred to in the bill.

The power of Congress to pass laws for the regulation of the navigation of public rivers, and to prevent any and all obstructions therein, is not questioned. But until it does pass some such law, there is no common law of the United States which prohibits obstructions and nuisances in navigable rivers, unless it be the maritime law, administered by the courts of admiralty and maritime jurisdiction. No precedent, however, exists for the enforcement of any such law; and if such law could be enforced, (a point which we do not undertake to decide,) it would not avail to sustain the bill in equity filed in the original case. There must be a direct statute of the United States in order to bring within the scope of its laws, as administered by the courts of law and equity, obstructions and nuisances in navigable streams within the States. Such obstructions and nuisances are offences against the laws of the States within which the navigable waters lie, and may be indicted or prohibited as such; but they are not offences against United States laws which do not exist; and none such exist except what are to be found on the statute book. Of course, where the litigant parties are citizens of different States, the circuit courts of the United States may take jurisdiction on that ground, but on no other. This is the result of so many cases, and expressions of opinion by this court, that it is almost superfluous to cite authorities on the subject. We refer to the following by way of illustration: Willson v. Black Bird Creek Co., 2 Pet. 245; Pollard's Lessee v. Hagan, 3 How. 212, 229; Passaic Bridges, 3 Wall. 782 App.; Gilman v. Philadelphia, 3 Wall. 713, 724; Pound v. Turck,

Opinion of the Court.

95 U. S. 459; Escanaba Co. v. Chicago, 107 U. S. 678; Cardwell v. American Bridge Company, 113 U. S. 205; Hamilton v. Vicksburg &c. Railroad Co., 119 U. S. 280; Huse v. Glover, 119 U. S. 543; Sands v. Manistee River Imp. Co., 123 U. S. 288; Transportation Co. v. Parkersburg, 107 U. S. 691, 700. The usual case, of course, is that in which the acts complained of are clearly supported by a state statute; but that really makes no difference. Whether they are conformable, or not conformable, to the state law relied on, is a state question, not a federal one. The failure of state functionaries to prosecute for breaches of the state law, does not confer power upon United States functionaries to prosecute under a United States law, when there is no such law in existence. But, as we have stated, the court below held that the act of Congress of 1859 was a law which prohibited any obstructions or impediments to the navigation of the public rivers of Oregon, including that of the Willamette River. Was it such an act? Did it have such an effect?

The clause in question had its origin in the 4th article of the compact contained in the Ordinance of the Old Congress for the government of the Territory North West of the Ohio, adopted July 13th, 1787; in which it was amongst other things declared that "the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor." 1 Stat. 52 n. This court has held, that when any new State was admitted into the Union from the North West Territory, the Ordinance in question ceased to have any operative force in limiting its powers of legislation as compared with those possessed by the original States. On the admission of any such new State, it at once became entitled to and possessed all the rights of dominion and sovereignty which belonged to them. See the cases of Pollard's Lessee v. Hagan, supra; Permoli v. First Municipality, 3 How. 589; Escanaba Co. v. Chicago; Cardwell v. American Bridge Co.; Huse v. Glover; qua supra. In admitting some of the new States,

Opinion of the Court.

however, the clause in question has been inserted in the law, as it was in the case of Oregon, whether the State was carved out of the Territory North West of the Ohio, or not; and it has been supposed that in this new form of enactment, it might be regarded as a regulation of commerce, which Congress has the right to impose. Pollard's Lessee v. Hagan, 3 How. 212, 230. Conceding this to be the correct view, the question then arises, what is its fair construction? What regulation of commerce does it effect? Does it prohibit physical obstructions and impediments to the navigation of the streams? Or does it prohibit only the imposition of duties for the use of the navigation, and any discrimination denying to citizens of other States the equal right to such use? This question has been before this court, and has been decided in favor of the latter construction.

It is obvious that if the clause in question does prohibit physical obstructions and impediments in navigable waters, the state legislature itself, in a State where the clause is in force, would not have the power to cause or authorize such obstructions to be made without the consent of Congress. But it is well settled that the legislatures of such States do have the same power to authorize the erection of bridges, dams, etc., in and upon the navigable waters wholly within their limits, as have the original States, in reference to which no such clause exists. It was so held in Pound v. Turck, 95 U. S. 459, in reference to a dam in the Chippewa River in Wisconsin; in Cardwell v. American Bridge Company, 113 U. S. 205, in reference to a bridge without a draw, erected on the American River in California, which prevented steamboats from going above it; and in Hamilton v. Vicksburg &c. Railroad Co., 119 U. S. 280, relating to railroad bridges in Louisiana; in all which cases the clause in question was in force in the States where they arose, and in none of them was said clause held to restrain in any degree the full power of the State to make, or cause to be made, the erections referred to, which must have been more or less obstructions and impediments to the navigation of the streams on which they were placed. In Cardwell v. American Bridge Co., the two alter

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